Kagan gets SCOTUS appointment

posted at 8:48 am on May 10, 2010 by Ed Morrissey

The only surprises in the leak that Barack Obama will appoint Elana Kagan to replace John Paul Stevens on the Supreme Court were the timing and target of the leak. In retrospect, giving the leak to NBC shouldn’t really surprise anyone, considering how determined its cable network has been to act as Obama’s apologist channel:

President Barack Obama will nominate Solicitor General Elena Kagan to the Supreme Court, positioning the court to have three female justices for the first time, NBC News reported late Sunday.

Kagan served as the Dean of Harvard Law School from 2003 to 2009. She was widely viewed as a front-runner when Obama was considering candidates for a Supreme Court opening last year, but the president ultimately chose Sonia Sotomayor for the job.

At 50 years old, Kagan would be the youngest justice on the court, one of many factors working in her favor. She has the chance to extend Obama’s legacy for a generation.

The timing seems less explicable. The late-Sunday leak gets the White House almost nothing it could have had with an early-Monday leak, and it missed the opportunity of pre-empting the Sunday talk shows’ focus on the Times Square bomber and the Gulf oil spill, two narratives that don’t play well for the administration. Instead, the news broke when most people weren’t paying attention at all — not quite as bad as a Friday afternoon document dump, since it would just make it in time for the Monday morning newspapers, but pretty close to the famous bad-news strategy every administration employs.

Is the White House that embarrassed by the choice of Kagan? She has no experience as a judge, and little as a private-sector attorney, either. Kagan has spent most of her career as an academic, spending six years as Dean of the Harvard Law School — giving the court yet another Harvard connection when people have been questioning Harvard and Yale exclusivity on the Supreme Court. For the past fifteen months, Kagan has served as Solicitor General, the Obama administration’s representative to the Supreme Court, but that experience seems rather thin as well. One might have expected someone who hadn’t served as a judge to spend at least several years arguing cases before the Court prior to getting appointed to it.

For “the most transparent administration in history,” Kagan has a very thin paper trail to give clues to her beliefs. She has not published much — a rarity among Harvard Law deans — which Ed Whelan argues doesn’t meet Kagan’s own standards for Supreme Court justices.

What does all this mean? It signals that the White House doesn’t want a big fight over a Supreme Court confirmation. They don’t want to appoint someone with a track record of judicial activism or a record of strong political advocacy. Obama wants a stealth candidate, someone who can win a relatively quick confirmation battle. Of the names floated by the White House after Stevens’ retirement, Kagan attracted the least amount of public opposition.

Will they get a quick and painless confirmation? Republicans may feel that Kagan was the least problematic of the available choices. She is perceived, at the moment, as a moderate liberal, but that may not necessarily be the case when Kagan starts deciding cases. Her position on keeping military recruiters off of college campuses certainly paints a different picture of those politics:

Beginning in 2004, Kagan changed established Harvard policy and barred recruiters from the school’s career center. The Pentagon responded by invoking the Solomon Amendment, a 1994 law that explicitly requires universities that receive federal funding to allow military representatives at least as much access to campus as any other group. With Harvard’s $400 million in annual grants on the line, Kagan was forced to surrender.

But she kept fighting. Kagan and the university filed an amicus brief arguing that Harvard’s policy did not amount to discrimination against the military. The university, claimed the brief, does “not single out military recruiters for disfavored treatment: Military recruiters are subject to exactly the same terms and conditions of access as every other employer.”

Kagan has since claimed she was merely representing Harvard’s institutional view on the matter. Yet the brief includes a footnote that she signed in her capacity as a professor, not as dean.

Either way, the Supreme Court was not impressed. Not only did the justices dismiss Kagan’s arguments, not a single liberal on the court offered a word of support. Souter, Ginsburg, Breyer and John Paul Stevens (the man Kagan would replace), all agreed with the majority decision written by Chief Justice Roberts.

Kagan may have had a sterling reputation as a law school dean, but as a jurist, she’s a mediocrity simply on the basis that she has no experience at all in that position. There is an argument to be made to appoint people outside of the realm of judges to the Supreme Court to get real-world perspective (the Constitution doesn’t require that an appointee be an attorney, let alone a judge), but very few people would look at Kagan’s career as anything but academic and insider politics. While Kagan may be the least objectionable of Obama’s potential appointees, the truth is that she’s a lot like Obama — an academic with no experience for the position she seeks, with a profound lack of intellectual work in her CV. Republicans who oppose Kagan should focus on those shortcomings.

Will there be any massive push against Kagan? I’m betting she’ll get around 70-75 votes for confirmation despite these shortfalls.

If you were giving a critique of Ginsberg or Stevens I’d probably give your comments half a thought. When you start critiquing judges who run against your belief system, I don’t give your comments any weight at all. You’ve never shown yourself to be anything but a ideologue who demagogues everything to do with politics from the center going to the right.

Sultry Beauty on May 10, 2010 at 12:02 PM

Um, K. I dont expect Stevens and Gunsburg to support peoples 4th amendment rights, I expect them to be big govt liberals. I DO expect a supposed constructionist to support the 4, 5, and 6th amendments like Scalia and Thomas do.

So spare me your failed analysis. And excuse me for expecting better from our so called conservative justices.

Between Christine Romer, Samantha Power, and Elena Kagan… and, erm, his wife, what is it with Obama and mannish looking women?

Red Cloud on May 10, 2010 at 10:55 AM

Your question answers itself. Since Jug Ears was the result of a drive-by, wonder what was wrong with his mother (named as a man) that she could attract a man but not hold onto him.

This butch nominee is all about shutting up the loud deviants while getting someone who lives in a liberal bubble. It’s also the Chicago thug’s version of Clinton’s triangulation.

A couple of commenters moaned about others commenting on the butch’s looks, claiming it is not relevant to qualification. It’s a good indication of how much value she puts on ‘fitting in’ with the mainstream. We are talking about a bow tie where everyone else is wearing a necktie – we’re talking about someone who either doesn’t ever try (or is actively resisting) to have a fashion sense.

What picture does this person send to those countries who hate Israel? It shows that they are right to hate Israel because the height of achievement of Jews in America goes to qu33rs. How much trust can be established negotiating with someone who thinks like they do? How much are we going to be hated because of our choices of who should lead us?

Jug Ears is bad enough. This female is a disaster that makes things much worse.

According to the Susan B Anthony List, there is documentation to prove that she’s pretty radically pro-abortion. From an email I just received from them:

Kagan publicly opposed Rust v. Sullivan, a Supreme Court decision that upheld the right of Health and Human Services to restrict funding for groups that performed or promoted abortion. Additionally, Kagan strongly believes that pregnancy resource centers should be barred from counseling teens in crisis pregnancies.

Then this from her thesis from the article linked by

kingsjester on May 10, 2010 at 10:11 AM

: “The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”

She’s talking about hope and change… She sounds very sympathetic to the plight of the poor socialist radicals.

I got the same e-mail from the SBA List as pannw and much to my sorrow I am unable at the moment to contribute to their fight against this woman.

I have also scouted out the radical left to see how they feel about her. Amazingly enough, they oppose Kagan. The Free Press nuts are even saying her appointment would shift the Supreme Court to the right and are calling on progressives to block Kagan.

Nothing about her adherence to the Constitution or this is for the better of the United States as a whole… it’s all about Obama.

Yakko77 on May 10, 2010 at 11:48 AM

The same statements were made about Roberts and Alito because they were so young.

Squid Shark on May 10, 2010 at 11:58 AM

Except Roberts and Alito had a judicial track record so we knew a lot more about them but with this “stealth candidate” as Ed correctly labeled “her” we know next to nothing. Obama and some in the media know something we don’t and for NBC to almost giddily say,

She has the chance to extend Obama’s legacy for a generation.

THAT frightens the hell out of me.

I know many here are saying we could’ve had a worse pick but I sense a disturbance in the Force.

Most likely she’s just one of those “right people” young pre-Barrack “Barry” liked to surround himself with in college. You know, Marxists, domestic terrorists, etc. Certainly not one of those crude people bogged down by white hegemonic trivialities like Constitutional text, etc.

A President that takes a teleprompter to speak before kids; Vice President Joe Biden; Janet ‘Mental Defective’ Napalitano; this nominee is no surprise. All the more reason, GOP not to put up a real candidate in 2012. We need another term of this. Country in ruins but it’s comedy gold when something actually goes wrong.

I can’t remember if it was Kagan who argued this or someone else… But wasn’t it the governments position in Citizens United v. Federal Election Commission that if “Hillary The Movie” was in book form as opposed to a movie, that it would of put the government in the position of banning books? OMG it’s true, KAGAN SUPPORTS BANNING BOOKS!!11!

…”In Elena Kagan, President Obama has found a nominee whose views on the First Amendment are at worst disqualifying and at least should be questioned rigorously. During the second round of oral arguments in CU v. FEC in September of 2009, Solicitor General Kagan argued that a statute that, by her own admission, banned books was not ‘overbroad,’ and that pamphlets produced with corporate funds could be censored because they are ‘classic electioneering…'”(Read the full PDF exchange here)

Sotomayor held firm under questioning. I was not impressed with her, but I begrudgingly have to give her that.

Might Kagan be thin-skinned? Since she’s lived in the echo chamber of academia, could she be unaccustomed to rigorous scrutiny? Any chance that she’ll cave under pressure and give ONE soundbite that sinks her nomination?

Obama has chosen someone that appears to have reasonable views on these issues. That doesn’t mean she does.

How she represented her client as a lawyer tells us nothing about how she would decide cases as a judge!

blink on May 10, 2010 at 10:40 AM

I agree, and I think that the utter lack of any judicial record should be an immediate disqualifier for ANY SCOTUS candidate.

But perhaps I was unclear this morning. I didn’t mean to suggest that Kagan’s positions are reasonable or moderate; I meant that Obama finds her views to be comfortable. The pick of Kagan says volumes more about him than it does her.

Indeed, the portrait of Kagan that Ed presents in the article above (an academic with hardly any paper trail, no substantive experience, little if anything to reveal her true beliefs) is one that I see as EXTREMELY parallel to Obama himself.

Thus my earlier suggestion that Kagan was picked because Obama is most comfortable with selling the kind of candidate that she is: an unknown quantity. When in doubt, fall back on what you know, I suppose.

“Ms. Miers has an exemplary record of service to our country. She will bring to the Court a lifetime of experience in various levels of government, and at the highest levels of the legal profession. She is a woman of tremendous ability and very sound judgment. … Ms. Miers has great experience in government as well, at the local, state, and federal levels. …She is well qualified to join the nation’s highest court. … She will make a fine addition to the Supreme Court, and I look forward to her confirmation.”